Introduction

Consistent with the common law practice of affidavits and the practice of "déclarations de tiers" before some civil law courts1, arbitration rules often provide that witness testimony may be contained in a statement in writing.

In fact, the production of witness statements has become common practice in international arbitration2.

Usually, the parties submit witness statements with (or sometimes after) their memorials. Then, in the course of the evidentiary hearings, the witnesses orally confirm their statement and may be cross-examined by the opposing party (and re-examined if the party which submitted the witness statement so wishes).

The advantages of this practice are the following:

It enables the parties to narrow the issues to be addressed at the evidentiary hearing.

It assists the parties and the arbitral tribunal to prepare for the evidentiary hearing.

It assists the arbitral tribunal to determine whether a specific witness testimony is relevant to the dispute (if it is not, the principle of efficiency would suggest that the witness should not be summoned to appear at the hearing), or whether it is sufficiently well-informed through other evidence and does not need to hear the witness. Indeed, arbitrators may decide, given the specific circumstances of the case, not to hear witnesses or all the witnesses a party wishes to examine3 (see "The Confirmation of the Witness Statement", page 70). For example, Article 20.3 of the ICC Rules[Page65:]

of Arbitration provides that the arbitral tribunal "may decide to hear witnesses (…)"; similarly, Article 20.2 of the LCIA Arbitration Rules provides that the arbitral tribunal "has a discretion to allow, refuse, or limit the appearance of witnesses (whether of fact or expert-witness)".

As a result, it increases the efficiency of the proceedings by reducing the length of the evidentiary hearings.

Even if witness statements are generally accepted in international arbitration, experience shows that parties, counsel and arbitrators not always agree on their purpose, their content and the way they should be used in the proceedings.

Although there is no codification of arbitration procedure, arbitration practitioners may refer to different sources in order to clarify misunderstandings and avoid unjustified expectations. In particular, the 1999 IBA Rules on the Taking of Evidence (the IBA Rules) 4, which are meant to reflect the current practice in international arbitration, constitute a useful tool. However, they do not directly apply, unless the parties have adopted them. In practice, it appears that parties and arbitral tribunals often use them as guidelines in developing their own procedures. Parties and arbitral tribunals may, of course, choose a procedural arrangement that differs from the ones suggested by the IBA Rules.

Some arbitral institutions have adopted specific provisions regarding witness evidence5. Moreover, the procedural rules regarding the taking of evidence drafted by arbitral tribunals also often contain useful information.

Given their importance in practice, I will address below some of the issues that arise in the context of the preparation and confirmation (or lack thereof) of witness statements.

Then, in conclusion, I will briefly discuss the efficiency of witness statements. To what extent do arbitral tribunals take witness statements into consideration when deliberating and drafting the award?

The preparation of witness statements

1. When should it take place?

From counsel's point of view, it should take place as soon as possible, namely, as soon as one knows the issues at stake and the facts to be proven. Indeed, it allows the parties (and counsel): [Page66:]

To determine which witnesses they may rely upon and what kind of information they are in a position to provide.

To prevent, at least to a large extent, the opposing party from obtaining witness statements from "their" own witnesses (former employees, consultants, etc.).

To ensure that the witnesses will be available at some point in time to work on their statement.

2. What information should witness statements contain?

According to Article 4.5 of the IBA Rules, witness statements shall contain:

(a) The full name and address of the witness, his or her present and past relationship (if any) with any of the Parties, and a description of his or her background, qualifications, training and experience, if such a description may be relevant and material to the dispute or to the contents of the statement;

(b) a full and detailed description of the facts, and the source of the witness's information as to those facts, sufficient to serve as that witness's evidence in the matter in dispute;

(c) an affirmation of the truth of the statement; and

(d) the signature of the witness and its date and place."

Some arbitrators specify that a picture of the witness shall be provided with the statement.

Witness statements do not constitute an additional opportunity for the parties to submit new factual allegations or to modify their prayers for relief, even if the witness statement is signed by a party representative. Factual allegations and prayers for relief must be contained in the memorials submitted by the parties. Witness statements are a means of adducing evidence, incomplete to the extent that they have to be confirmed orally at the hearing (unless the parties agree or the arbitral tribunal decides otherwise) (see "The Confirmation of the Witness Statement" page 70), and should be treated as such by arbitral tribunals, irrespective of their actual content.

In practice, the submission of additional memorials entitled "witness statement" often proves to be useless, if not completely counter-productive. [Page67:]

3. Is it possible to attach documents to witness statements?

In principle, unless the parties or the arbitral tribunal decide otherwise, nothing prevents witnesses from attaching documents to their statements, to the extent that these documents relate to the content of their testimony. For example, a witness explaining that he personally supervised specific marketing studies (which the opposing party disputes) may wish to annex to his statement the facsimiles and e-mails that he sent in this context.

However, the submission of witness statements should not become a convenient way for the parties to produce documents they were not in a position or forgot to produce in a timely manner. In order to prevent the development of such a practice, documents attached to a witness statement should be viewed as a part of this statement and evaluated as such by the arbitral tribunal. To avoid any misunderstanding, if a party intends to rely on a document provided by a witness, for example to prove other factual allegations contained in its written submissions, it should produce the document as an exhibit, if the applicable procedural rules permit it at this stage of the proceedings.

If specific documents are cited in the witness statement without being attached to it, the opposing party should be entitled to obtain the production of these documents. However, a request to produce all the documents that the witness may have used to prepare his statement would be excessive.

4. What should be the role of counsel?

It is now generally accepted in international arbitration that counsel may have contact with witnesses prior to the evidentiary hearings6. However, if it appears in a given case that parties and counsel are not experienced in international arbitration and / or come from different legal traditions (in some legal systems preparing witnesses may be contrary to lawyers' ethical rules), the arbitral tribunal should ensure that the same rules regarding the preparation of witnesses apply to all parties7.

It is also accepted that witnesses usually do not write their statements themselves. The practice of having the last page of the statement only containing the date and the signature of the witness (in different characters from the other pages of the document) does not seem to surprise anyone anymore. [Page68:]

In practice, counsel often help the witness to focus on the relevant issues. He then reviews the statement or drafts it on the basis of the story told by the witness, who should approve the text. This way of proceeding usually facilitates the submission of witness statements, which the opposing party and the arbitral tribunal may understand.

However, counsel would be well advised to use the witness' own words and expressions, as long as they are understandable. This would make the witness statement more credible (and often more interesting). Moreover, the impact on the arbitral tribunal may be rather negative, if it appears at the evidentiary hearing that the witness does not understand the words used in his own statement (see "The Impact of Witness Statements on the Result of the Arbitration", page 73).

In any event, the story has, of course, to be that of the witness, not the product of the party's (or counsel's) imagination or wishes8.

The submission of witness statements

One of the issues frequently discussed in the course of procedural hearings relates to the timing of the submission of the witness statements. Should they be filed with the memorials or afterwards?

The answer obviously depends on the circumstances of each arbitral proceeding. However, parties may be less tempted to view witness statements as additional memorials and to submit bundles of documents attached to them if the witness statements and the memorials have to be filed simultaneously.

The confirmation of the witness statement

First, it may be useful to emphasise that the arbitral tribunal can decide that the witness statements, or some of them, will not be confirmed orally9. Indeed, as stated by the Swiss Federal Tribunal in a recent decision dated January 7, 2004, arbitrators may consider that, given the circumstances of the case, it is not justified to summon witnesses who submitted witness statements to appear at an evidentiary hearing. Such a decision does not imply, however, that the arbitral tribunal will not take these witness statements into consideration when weighing the evidence produced by the parties10.[Page69:]

Assuming that the arbitral tribunal does not make such a decision (which should not occur very often, since the tendency in international arbitration is not to take into account witness statements which have not been confirmed orally or are not corroborated by other evidence), one may refer to the approach adopted in the IBA Rules. Indeed, procedural orders rendered by arbitral tribunals regarding the taking of evidence often contain similar rules. Since this approach seems to be the most frequent one in practice, it is useful to address some of the difficulties that it may cause.

Pursuant to Article 4.7 of the IBA Rules:

"Each witness who has submitted a Witness Statement shall appear for testimony at an evidentiary hearing, unless the Parties agree otherwise".

Parties and arbitrators may face the following situations:

The usual case

One party wishes to cross-examine a witness presented by the opposite party. The witness is summoned and appears at the evidentiary hearing. His oral testimony (during the examination in chief and/or cross-examination) confirms the content of his witness statement. The witness statement and the testimony together constitute evidence. When making its decision, the arbitral tribunal will evaluate them.

The witness does not appear at the hearing

The witness is summoned to the hearing, but fails to appear, without giving any reason. According to Article 4.8 of the IBA Rules:

"If a witness who has submitted a Witness Statement does not appear without a valid reason for testimony at an evidentiary hearing, except by agreement of the Parties, the Arbitral tribunal shall disregard that Witness Statement unless, in exceptional circumstances, the arbitral tribunal

determines otherwise".

Thus, unless the witness gives a valid reason or the parties agree not to hear the witness, the witness statement shall be disregarded. The arbitral tribunal may decide otherwise in exceptional circumstances, such as the death of the witness. In this event, it will take into consideration the witness statement, notwithstanding the witness's failure to appear at the evidentiary hearing. [Page70:]

There is an agreement of the parties not to hear the witness

The parties agree that there is no need to hear the witness. According to Article 4.9 of the IBA Rules:

"If the Parties agree that a witness who has submitted a Witness Statement does not need to appear for testimony at an evidentiary hearing, such an agreement shall not be considered to reflect an agreement as to the correctness of the content of Witness Statement".

In this event, the arbitral tribunal should not disregard the witness statement. It has to evaluate it notwithstanding the lack of oral confirmation (which may prove difficult, given that the arbitral tribunal is not in a position to ascertain the credibility of the witness).

The opposing party does not intend to cross-examine the witness

The opposing party does not intend to cross-examine the witness. In this event, may the arbitral tribunal or the other party require that the witness appear to give testimony?

As far as the arbitral tribunal is concerned, there is little doubt that it can decide to summon the witness if it deems appropriate.

According to the IBA Rules (see Article 4.9 a contrario), the party submitting the witness statement may also request the appearance of the witness. Nonetheless, in practice, witness statements are often meant to replace direct examination11. As a result, arbitral tribunals sometimes consider that only the party wishing to cross-examine the witness may request the appearance of the witness. This position is not satisfactory for the following reasons:

First, it means that the party submitting the witness statement has no control whatsoever over the appearance of its own witnesses at the evidentiary hearing (which could prevent the witness from confirming his statement).

Second, if arbitral tribunals come to the conclusion that witness statements replace direct examination, they should also consider them as such when deciding the case, even if no cross-examination has taken place. I very much doubt that this is actually the case, especially when, at the same time, some arbitral tribunals do not view witness statements as such as evidence, if the witness has not been heard. Moreover, the tendency in international arbitration[Page71:] is to give little credence to witness statements, especially when the witness is not heard in the course of an evidentiary hearing (see "The Impact of Witness Statements on the Result of the Arbitration", page 73).

As a result, the best solution is certainly to authorize both parties to request the appearance of witnesses, even if the parties have agreed or the arbitral tribunal has ordered that witness statements shall serve as the witness's direct testimony. In this case, according to the principle of efficiency of the arbitral proceedings, direct examination may be limited to a confirmation by the witness of the accuracy of his statement with, perhaps, some additional (limited) explanations of some major issues.

In any event, arbitral tribunals should clarify at the beginning of the proceedings whether written statements will be treated as direct testimony. Arbitral tribunals should also make certain that all parties understand the consequences of such a decision.

The content of the oral testimony

In principle, the scope of direct examination (if there is any) should be limited by the content of the witness statement (unless new issues have arisen since the submission of the statement, or the parties agree otherwise). Otherwise, the submission of such a statement would prove pointless. In fact, direct examination should normally be limited to confirming or explaining in a more detailed manner major issues addressed in the statement (without repeating the content of the statement). Sometimes, it may be sufficient to have the witness merely confirm that the content of the statement is accurate.

Obviously the scope of cross-examination cannot be limited in the same way. Otherwise, a party could prevent the opposing party from asking relevant questions by submitting witness statements dealing with side issues only.

The impact of witness statements on the result of the arbitration

One often wonders to what extent arbitral tribunals take into account witness statements when making their decision. Obviously, there is no one answer to this question. Each arbitrator may have a different approach. However, there seems to be a trend not to take witness statements into account, unless the witness gives convincing explanations during the evidentiary hearing or other reliable evidence corroborates them. [Page72:]

Such a result is not surprising. Indeed, since it is widely accepted that witness statements are not written by the witness himself, the only way to ascertain whether the wording of the statement genuinely reflects the message that the witness intended to convey is to hear this witness12. Hence, it is understandable that arbitral tribunals are reluctant to refer in their awards to witness statements, which have not been orally confirmed.

In conclusion, it seems that witness statements give rise to contradictory tendencies. There is no doubt that they are widely used in international arbitration. Frequently, they are meant to serve as direct testimony, notwithstanding the fact that they do not look like written statements made by witnesses. At the same time, arbitrators seem to be increasingly reluctant to take them into account as such, unless the credibility of the witness has been tested during the evidentiary hearing or other reliable evidence confirms the accuracy of the statement. In other words, witness statements are supposed to increase the efficiency of the arbitral proceedings but seem to be a rather ineffective means to convince arbitral tribunals.

As a result, counsel and parties would be well advised to make certain that witness statements do not look like lawyers' briefs and that witnesses who submit written statements are given an opportunity to appear at the evidentiary hearings. [Page73:]

1
See articles 199ss of the Nouveau Code de Procédure Civile.

2
Laurent Lévy, "Witness Statements", in De Lege Ferenda, Etudes pour le professeur Alain Hirsch, 2004, p. 96; Paolo Michele Patocchi and Ian Meakin, "Procedure and The Taking of Evidence in International Commercial Arbitration", The Interaction of Civil Law and Common Law Procedures, RDAI/IBLJ, No. 7, 1996; Derains/Schwartz, A Guide to the New ICC Rules of Arbitration, 1998, p. 257; Redfern/Hunter, Law and Practice of International Commercial Arbitration, third edition, 1999, par. 6-78.

3
Fouchard/Gaillard/Goldmann, On International Commercial Arbitration, 1999, par. 1277; Redfern/Hunter, Law and Practice of International Commercial Arbitration, third edition, 1999, par. 6-78; Poudret/Besson, Droit comparé de l'arbitrage international, 2002, par. 553; Lew/Mistelis/Kröll, Comparative International Commercial Arbitration, 2003, par. 22-69; Decision of the Swiss Federal Tribunal published in ATF 119 II 386; Decision of the Court of Appeal in Dalmia Dairy Industries Ltd (1978) 2 Lloyd's Rep. 223, 270: the sole arbitrator sitting in London refused to hear certain witnesses. In the context of a subsequent enforcement action, the Court of Appeal stated that, according to the then applicable Article 20 of the ICC Rules, the arbitrator had a discretion but not an obligation to hear witnesses.

4
IBA Rules on the Taking of Evidence in International Commercial Arbitration, 1 June 1999.

5
See for example the LCIA Rules, 1 January 1998, Article 20.

6
Georg von Segesser, "Witness Preparation in International Commercial Arbitration", Swiss Arbitration Association (ASA) Bulletin, No. 2, 2002, p. 224; David Roney, Effective Witness Preparation For International Commercial Arbitration: A Practical Guide For Counsel in Journal of International Arbitration 2003, 20(5), p. 429ss.

7
Fouchard/Gaillard/Goldmann, On International Commercial Arbitration, 1999, par. 1285.

8
Even if in some States, notably in Switzerland, the submission of a witness statement containing inaccurate information would probably not constitute a criminal offence, the actual impact of such a document on the party's case may be disastrous.

9
Karl-Heinz Böckstiegel, "Experience as an Arbitrator Using the UNCITRAL Arbitration Rules", in Etudes de droit international en l'honneur de Pierre Lalive, Bâle, 1993, p. 435.

10
In the United States, see the Decision rendered by the United States District Court, Southern District of New York on 12 January 1993, Arbitration Between Intercarbon Bermuda Ltd. vs Caltex Trading and Transport Corp., published in XIX Y. B. COM. ARB.802 (1994): "The Court is mindful of the factors weighing against the arbitrator's decision to render judgment on the documentary evidence alone: the importance of hearings to most arbitration proceedings; the weakness of affidavits as bases for summary determinations; and the repeated desire of InterCarbon to present live testimony. Despite these considerations, the arbitrator's decision is reasonable and does not amount to misconduct. Hearings will not be required just to see whether real issues surface (….)." One may assume that the opinion recently expressed by the United States Supreme Court in a criminal case, according to which the defendant's constitutional right of confrontation and cross-examination is violated if an eyewitness is not available at trial (because of marital privilege) would not apply in the context of international arbitration (Crawford vs Washington, March 8, 2004).

11
See Article 8.3 of the IBA Rules; Michael Bühler, Carroll Dorgan, "Witness Testimony Pursuant to the 1999 IBA Rules of Evidence in International Commercial Arbitration" in Journal of International Arbitration 17(1): 3-30, 2000.

12
"The practice of taking factual witness statements requires urgent reform. Increasingly, many international arbitrators pay little credence to written witness statements on any contentious issue, unless independently corroborated by other reliable evidence. It is perhaps surprising that many sophisticated practitioners have not yet understood that their massive efforts at re-shaping the testimony of their client's factual witnesses is not only ineffective but often counter-productive." (V.V. Veeder, the 2001 Goff Lecture, "The Lawyer's Duty to Arbitrate in Good Faith, Arbitration International, 2002, Vol. 18, No. 4, p. 445)¨.